The US Department of Justice uses the Espionage Act to charge an agent of the Federal Bureau of Investigation, whose Washington D.C. headquarters are pictured, for allegedly leaking information to a reporter (AP/Pablo Martinez Monsivais).

New US Espionage Act prosecution has troubling implications for press freedom

March 29, 2018 5:11 PM ET

New York, March 29, 2018-- The Committee to Protect Journalists today said it is concerned by the U.S. Department of Justice's use of the Espionage Act to charge an FBI agent for allegedly leaking information to a reporter.

"Over the past decade, we've seen an unprecedented increase in the use of an antiquated World War I-era law to go after journalistic sources. The result has been a chilling effect," said Alexandra Ellerbeck, North America program coordinator at CPJ. "Rather than rolling back the use of this law, which is all but guaranteed to ensnare journalists, the Trump Administration has boasted about pursuing leakers even as it has ushered in a new era of overt hostility to the press."

The Minneapolis Star Tribunereported yesterday that Terry James Albury, an FBI agent in Minnesota, allegedly shared documents with the press related to the FBI's work with informants. He faces two counts under the Espionage Act, one for unauthorized retention of national defense information and one for "knowingly and willfully" transmitting government documents to a reporter, according to the DOJ's filing yesterday, which CPJ reviewed. The type of charging document filed by the DOJ, known as a felony information, is usually indicative of an imminent guilty plea, according to the Star Tribune.

News reports linked the prosecution to documents published on the news website The Intercept. Although the DOJ does not name the news outlet to which Albury is accused of leaking, the DOJ's search warrant application explains how the FBI used Freedom of Information Act Requests from a journalism outlet to link Albury to the alleged leak, Minnesota Public Radio reported. Last year, The Intercept published a series on the FBI, which revealed, among other things, the agency's reliance on racial profiling. In a statement yesterday, The Intercept's editor-in-chief, Betsy Reed, said that the publication did not discuss anonymous sources, but called the use of the Espionage Act to prosecute whistleblowers "an outrage."

Lawyers for Albury defended his actions this week, and said he acted in the public interest: "Mr. Albury's actions were driven by a conscientious commitment to long-term national security and addressing the well-documented systemic biases within the FBI," his attorneys JaneAnne Murray and Joshua Dratel said.

This is the second Espionage Act prosecution under the Trump administration against an individual accused of leaking information to the media. In June 2017, National Security Agency contractor Reality Winner was charged for allegedly providing a document on Russian election meddling to The Intercept.

The use of the Espionage Act has increased exponentially over the past decade. It was used to prosecute at least eight government employees or contractors under the Obama administration, more than all previous administrations combined. In 2013, CPJ released a report on the Obama administration's relationship with the press that showed how these leak prosecutions caught up reporters, undermined source protection, and chilled the flow of information in the public interest. The Trump administration has indicated that it wants to expand on this record. Attorney General Jeff Sessions said in November that the Justice Department has 27 leak investigations open, noting that in the past few years of the Obama administration the department averaged just three investigations per year.

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